Entrenchment of Electoral
Provisions in the Federal, State and
Territory Constitutions

There are all sorts of
political-philosophical and logical arguments
about when a Parliament should be able to insert a
special provision in its Constitution to protect
fundamental features against over-ready amendment
but, in Australia, they were largely pre-empted by
the Australia
Act 1986, enacted by co-operation of
the Commonwealth and States using the procedure in
Section
51(xxxviii) of the Commonwealth
Constitution. It gives the States a general broad
legislative power - subject of course to the
Commonwealth Constitution - and states in its
Section 6:

"6. Notwithstanding sections 2 and 3(2) above,
a law made after the commencement of this Act by
the Parliament of a State respecting the
constitution, powers or procedure of the
Parliament of the State shall be of no force or
effect unless it is made in such manner and form
as may from time to time be required by a law
made by that Parliament, whether made before or
after the commencement of this Act. "

The High Court of Australia has read this
literally and narrowly and has said, when a
proposed law seems to be governed by a special
"manner and form" requirement for its enactment,
the "manner and form" provision is binding IF AND
ONLY IF the proposed new law is one about "the
constitution, powers or procedure of the
Parliament", and in other cases the Parliament can
enact laws by simple majorities and the normal
doctrine that later laws repeal earlier contrary
laws applies, regardless of any apparent special
rule for its enactment. So the provisions,
for example, of the New South Wales Constitution
Act 1902 about
proportional representation for the Legislative
Council, equal electorates for the
Legislative Assembly, etc, are probably binding
because new rules would be about the constitution
of the Parliament, but the provisions in the
Victorian Constitution Act 1975 about
privatization of water
supplies and several other matters not
connected with the Parliament itself are probably
not.

In Queensland in 1977, while Sir
Johannes Bjelke-Petersen was the Premier,
the Parliament inserted Section
53 into Queensland's Constitution
Act 1867, protecting various sections
about the Queen and Governor by a referendum
requirement. In so far as they relate to the role
of the Queen and the Governor in legislation,
those sections are probably effectively protected,
as a change would be changing the constitution or
powers of the Parliament (of which the Queen and
the Governor form a part).

However, Section 53 also purported to protect the
then Section 14, which had provided that officers
of the Public Service were to be appointed by the
Governor (except for minor appointments, the
extent of which wasn't defined), and in 1996 the
Parliament, while Mr
Robert Borbidge was the Premier, repealed
that Section 14, and the reference to it in
Section 53. Professor
Suri Ratnapala of the University of
Queensland was reported on the front page of
Brisbane's Courier-Mail daily newspaper
protesting that it was invalid, but no challenge
or test case was taken to the courts, so the
repeal became a fait accompli. Based on
what the High Court said in Marquet's
case, especially the extremely elliptical
Paragraph 80 in its judgement, it would probably
have rejected any challenge in this particular
case.